A Surge in Mass Tort Litigation in Canada

For over 20 years, Canada has been known internationally as a haven for product liability class actions. Due to the low threshold for obtaining class certification, most proposed product-liability class actions in Canada are certified for class treatment. While class actions remain a popular model in Canada, several factors, including recent changes to the Class Proceedings Act (CPA) in Ontario, have given rise to “mass torts” of multiple individual claims across the country. In that regard, we have observed a growing number of Canadian plaintiffs’ firms that have recently shied away from traditional class-action claims in favour of commencing mass torts.

In this article, we highlight trends we are seeing in both Ontario and Western Canada.

1. Ontario Sees Surge of Mass Torts

In Ontario, mass torts have become more common in recent years, likely in part because of legislative changes to the province’s class-action regime, plaintiffs’ desire to secure a seat at the settlement table in Canada and possibly the U.S., and the avoidance of carriage fights among plaintiffs’ firms.
 
Not coincidentally, the number of product-liability class actions has decreased in Ontario, while the number of proposed national class actions in provinces that do not have predominance and superiority requirements as part of their legislation — in particular, British Columbia — are on the rise.
 
Since Canada has no equivalent to the American multidistrict litigation system, the procedures used to manage large inventories of cases nationally are largely ad hoc, and no rules or procedural mechanisms exist to manage such inventories across the country. In turn, defending such actions requires unique strategic considerations.

2. Class Actions Migrating West

Canada’s class actions landscape has changed in recent years. The 2018 amendments to B.C.’s CPA immediately made the province a more attractive jurisdiction for plaintiffs’ counsel due to its national opt-out no-costs regime.
 
If that wasn’t incentive enough, in 2020, Ontario introduced mandatory superiority and predominance tests as part of the preferability requirement for class certification, which led to the growing perception among some Ontario-based plaintiffs’ firms that the test for certification is no longer as favourable to plaintiffs in Ontario as it previously was. As a result, more and more class actions are being commenced in British Columbia, and we are seeing plaintiffs’ counsel there push the envelope in terms of creative causes of action and the breadth of cases. An emboldened provincial health insurer is also contributing to this trend.
 
What’s more, changes to the tort scheme for motor-vehicle litigation in B.C. have also dramatically impacted the availability and economics of these cases for plaintiffs’ counsel who traditionally worked in this area and who have now begun to focus on product liability mass torts in order to fill the gap.

Conclusion

The emergence of a new model of mass torts in Canada represents a significant development for the Canadian product-liability defence bar. The increased likelihood that defendants will be faced with multiple competing actions both in Ontario and B.C. means that clients will require coordinated teams across the country when responding to such claims.
 
For more information, please contact any member of our Class Actions group.